[¶ 1] In consolidated appeals, Antonio Phillip Stridiron and Bradley A. Davis appeal from criminal judgments entered on jury verdicts finding Stridiron guilty of class AA felony murder and Davis guilty of class C felony aggravated assault. We affirm, concluding the district court did not err in its pretrial and trial rulings and the evidence is sufficient to support Davis’s conviction.
I
[¶ 2] In the early morning hours of July 29, 2007, the body of Joshua Velasquez was found in an alley across the street from a Minot duplex where he had been attending a party. Stridiron and Davis, who are African-American, resided in the duplex. Velasquez was Hispanic. Following an investigation, Davis was charged with class C felony aggravated assault in violation of N.D.C.C. § 12.1-17-02 and Stridiron was charged with class *896 AA felony murder in violation of N.D.C.C. § 12.1-16-01. The State alleged that an altercation occurred at the party and Davis and Stridiron followed Velasquez across the street where Davis struck him with a garden tool containing serrated blades and Stridiron shot him with a handgun.
[¶ 3] The district court, over Davis’s objection, granted the State’s motion to join the cases for trial. Before trial, the court also denied Stridiron’s motion for a public opinion survey and for a change of venue based on his allegation of prejudicial pretrial publicity. During the selection of a jury, the State exercised a peremptory challenge excusing the only African-American juror in the jury pool, and the court denied Stridiron and Davis’s challenge to the State’s action based on
Batson v. Kentucky,
II
[¶ 4] Davis argues the district court erred in granting the State’s pretrial motion to join for trial his aggravated assault case with Stridiron’s murder case, and in failing to sever the cases when he renewed his objection during voir dire.
[¶ 5] Before trial, the State moved to join the cases because joinder “will permit economy and efficiency and will avoid multiplicity of trials in a situation in which these objectives can be reached without substantial prejudice to the rights of the ... defendants.” Davis objected, arguing he would be prejudiced by Stridiron’s attempts to implicate him in the murder and by the introduction of evidence relevant to the murder charge but irrelevant to his aggravated assault charge. The district court granted the State’s motion, concluding Davis had failed to establish he would be prejudiced by joinder and limiting instructions given to the jury would sufficiently address Davis’s concerns. During voir dire, Davis renewed his objection and sought to sever the cases based on a morning newspaper articlе indicating the defendants were “being tried together for alleged roles in death of Velasquez.” Based on the admonitions given earlier to the jury to not read about, listen to, or view news accounts of the case, the court denied Davis’s motion.
[¶ 6] In
State v. Bingaman,
Rule 8(b), N.D.R.Crim.P., provides for two or more defendants to be charged in the “same indictment, information, or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more offenses.” Rule 13, N.D.R.Crim.P., further gives the court the power to “order two or more indictments, informations, or complaints to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment, information, or complaint.” Joinder of defendants is proper when the defendants are linked together by their participation in a common transaction or act. See Explanatory Note, N.D.R.Crim.P. 8 (citing United States v. Brennan,134 F.Supp. 42 (D.Minn.1955)).
However, even when Rules 8 and 13, N.D.R.Crim.P., are initially met and joinder is granted, severance of the рarties may still be necessary if the court deems the joinder to be substantially prejudicial to one or more of the parties. Rule 14, N.D.R.Crim.P., states that, “[i]f *897 it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires.” See State v. Wamre,1999 ND 164 , ¶ 29,599 N.W.2d 268 . The triаl court’s duty under Rule 14 is a continuing one, and it must continue to assess whether severance is necessary in light of developments during the trial. See [State v.] Dymowski, 459 N.W.2d [777,] 781 [(N.D.1990)]. The purpose of Rule 14 is to “promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of defendants to a fair trial.” Dy-mowski, at 779.
We will not set aside a district court’s decision to consolidate offenses or its refusal to grant a separate trial unless the defendant establishes a clear abuse of discretion.
See Wamre,
[¶ 7] Here, Stridiron and Davis were charged with participating in the same series of acts constituting more than one offense which occurred contemporaneously and were directed toward the same victim. Davis concedes “the consolidаtion of these matters provided judicial convenience and economy as the witnesses were largely the same.” Davis contends prejudice is demonstrated by the newspaper article which stated the defendants were being tried for their roles in Velasquez’s death, exhibits introduced in evidence that were relevant to Stridiron’s murder charge but not to the aggravated assault charge, the “ability of the other defendant’s attorney to cross examine” the defendant, and Stridiron’s lawyer’s attempts through the questioning of a witness to implicate Davis in the murder of Velasquez.
[¶ 8] We reject Davis’s arguments. Davis has failed to link the allegedly misleading newspaper article with having any effect on the jury. The district court gave limiting jury instructions on the proper use of the murder evidence, and a jury is generally presumed to follow a court’s instructions.
See, e.g., State v. Gibbs,
[¶ 9] We conclude the district court did not abuse its discretion in joining the cases for trial and in refusing Davis’s request for severance.
Ill
[¶ 10] Stridiron argues the district court erred in denying his pretrial motion *898 for access to the names, addresses, and telephone numbers of the members of the prospective jury pool for purposes of submitting to them a public opinion survey to gauge any bias caused by media coverage of Velasquez’s death and by actions of Velasquez’s family and friends in initiating a “Justice For Joshua Velasquez” pеtition drive. Stridiron also argues the court erred in denying his companion motion for a change of venue based on prejudicial pretrial publicity generated by conventional media and online commentary.
[¶11] Rule 21(a), N.D.R.Crim. P., provides: “Upon the defendant’s motion, the court must transfer the proceeding against the defendant to another county if the court is satisfied that so great a prejudice against the defendant exists in the transferring county that the defendant cannot obtain a fair and impartial trial there.” We have said that “[pjublicity per se is not necessarily prejudicial or damaging to a criminal defendant,” and “[b]efore a change of venue because of pretrial publicity is proper, a defendant must show the publicity was in fact prejudicial.”
State v. Ellis,
[¶ 12] This Court has suggested that “defendants submit qualified public opinion surveys, other opinion testimony, or any other evidence demonstrating community bias caused by the media coverage” to support a motion for change of venue.
State v. Erickstad,
[¶ 13] In
Austin,
The trial court has personally heard the juror’s responses on voir dire, and is able to draw the subtle inferences of prejudice and bias that elude the cold record. The trial court is also closer, *899 chronologically and geographically, to any prejudicial prеtrial media coverage, and is better able to contemporaneously assess its effect within the context of then-prevailing community attitudes.
[¶ 14] We conclude the district court did not abuse its discretion in denying Stridiron’s motions for access to the jury pool for purposes of a public opinion survey and for a change of venue based on prejudicial pretrial publicity.
IV
[¶ 15] Stridiron and Davis argue the district court erred in ruling the State’s use of a peremptory challenge to excuse the only African-American in the jury pool was not racially motivated.
[¶ 16] In
Batson v. Kentucky,
“[T]he defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, [430 U.S. 482 , 494,97 S.Ct. 1272 , 1280,51 L.Ed.2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s rаce. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ Avery v. Georgia, [345 U.S. 559 , 562,73 S.Ct. 891 , 892,97 L.Ed. 1244 (1953)]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.” Batson, supra,476 U.S. at 96 ,106 S.Ct. at 1723 .
Once the defendant makes a prima facie showing, the burden shifts to the prosecution to come forward and articulate a race-neutral explanation for the challenges related to the particular case to be tried. Batson, supra,476 U.S. at 97-98 ,106 S.Ct. at 1723-1724 . A mere denial that the prosecutor had a discriminatory motive will not suffice; “the prosecutor must give a ‘сlear and reasonably specific’ explanation of ... ‘legitimate reasons’ for exercising the challenges.” Batson, supra,476 U.S. at 98 n. 20,106 S.Ct. at 1724 n. 20 [quoting Texas Dept. of Community Affairs v. Burdine,450 U.S. 248 , 258,101 S.Ct. 1089 , 1096,67 L.Ed.2d 207 (1981) ].
A district court’s findings in resolving a
Batson
challenge during jury selection will not be overturned on appeal unless they are clearly erroneous.
Fern,
[¶ 17] Assuming for purposes of argument that Stridiron and Davis established a prima facie case of racial discrimination in the prosecutor’s use of the peremptory *900 challenge, the prosecutor gave a clear and specific race-neutral explanation for exercising the peremptory challenge. The prosecutor explained that the juror he peremptorily challenged had been a juror in an earlier negligent homicide case he had prosecuted in which the jury had acquitted the defendant. The prosecutor noted the juror was reading a book when the judge was talking to the potential jurors. The prosecutor also pointed to his concerns about her answers to questions about her understanding of self defense, an issue which would be raised in the case.
[¶ 18] “Prospective jurors’ specific responses and demeanor during voir dire may constitute neutral explanations for exercising ... peremptory challenges.”
Fern,
V
[¶ 19] Stridiron argues the district court erred in refusing to allow him to present testimony from a witness who claimed Davis had admitted to her that he killed Velasquez.
[¶ 20] Stridiron filed a pretrial motion in limine seeking to introduce testimony of Alicia Boyce about Davis’s “out-of-court confession to the murder” of Velasquez. Stridiron claimed in part that Davis’s “confession” was admissible as a statement against interest under N.D.R.Ev. 804(b)(3). Davis and the State objected to the proffered testimony. The district court denied Stridiron’s motion, concluding he “faded to establish corroborating circumstances that clearly indicate the trustworthiness of Ms. Boyce’s statement.” During trial, Boyce testified out of the presence of the jury that, on July 30, 2007, Davis “was bragging about the fact that he did it and he was going to get away with it and he would do it again if he could.” The court disallowed the testimony, adhering to its original ruling on Stridiron’s motion.
[¶ 21] Rule 804(b)(3), N.D.R.Ev., provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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(3) Statement against interest. A statement that was at the time of its making so far contrary to the declar-ant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position would not have made the statement without believing it to be true. A statement tending to expose the de-clarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both the declarant and the accused, is not within this exception.
Rule 804(b)(3), N.D.R.Ev., contains three requirements: “(1) the declarant must be unavailable to testify at trial, (2) the statement, at the time of its making, must subject the declarant to criminal liability such that a reasonable person would not have made the statement without believing it to be true, and (3) a statement tending to expose the declarant to criminal liability
*901
and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
State v. Lefthand,
[¶ 22] The district court found the first two requirements were satisfied, but ruled Stridiron “failed to establish corroborating circumstances that clearly indicate the trustworthiness of Ms. Boyce’s statement.” Stridiron argues the court erred in focusing on the trustworthiness of Boyce’s statement rather than the trustworthiness of Davis’s “confession.” This Court has not addressed whether certainty of the making of a statement, which implicates the veracity of the in-court witness, is a proper focus of inquiry under N.D.R.Ev. 804(b)(3).
[¶ 23] Because the “corroborating circumstances” requirements in N.D.R.Ev. 804(b)(3) and Fed. R. Ev. 804(b)(3) are identical, we may look to federal court interpretations of the corresponding federal rule for guidance.
See, e.g., Black v. Abex Corp.,
A strong argument can be made that the credibility of the witness is irrelevant to admissibility under Rule 804(b)(3), which is basically a hearsay rule. A test for admissibility of hearsay statements based on the credibility of the witness who testifies about the statement is unrelated to the purpose of the general rule against hearsay. Hearsay statements are usually excluded because the declarant is unsworn and unavailable for cross-examination and because the jury cannot evaluate his demeanor. Advisory Committee’s Introductory Note on the Hearsay Problem,56 F.R.D. 183 , 288-289. Consistently with these rationales, exceptions to the hearsay rule in Rules 803 and 804 are made because the circumstances of the declaration indicate that the declarant’s perception, memory, narration, or sincerity concerning the matter asserted in the statement (see id.,56 F.R.D. at 288 ) is trustworthy. The jury can evaluate the perception, memory, narration, and sincerity of the witness who testifies about the hearsay declaration, and that witness testifies under oath and subject to cross-examination. To exclude a hearsay statement because of doubt that it was made is to exclude it not because of its hearsay nature but for some other reason. Although some other rule of evidencе (pos *902 sibly Rule 403) may give the judge the authority to exclude evidence on that other basis, Rule 804(b)(3), to the extent that it is a hearsay rule, does not.
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Some factors indicate that Rule 804(b)(3) was intended to give judges at least limited power to exclude an exculpatory statement of alleged accomplices because corroborating circumstances do not clearly indicate the trustworthiness of the witness. First, the Rule refers to the trustworthiness of the statement, not of the declarant, and that formulation may be broad enough to put the trustworthiness of the witness as well as the declarant at issue. Second, some portions of the legislative history suggest that the draftsmen intended Rule 804(b)(3) to be more than purely a hearsay rule. Some relevant excerpts from the legislative history are set out in United States v. Bagley, 537 F.2d [162,] 167 [(5th Cir.1976)], and in addition, the Advisory Committee on the Federal Rules of Evidence noted that “one senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents.... ” Advisory Committee’s Note on Rule 804(b)(3),56 F.R.D. 183 , 327 (emphasis added). If a court should exclude such a statement if the declarant could not know what he was talking about because he was in jail at the time of the crime, see 4 Wein-stein’s Evidence § 804(b)(3)[03], at 804-90 (1977), perhaps it should exclude such a statement if the witness could not know what he was talking about because he was in a different jail than the declar-ant at the time of the alleged statement. ...
[¶ 24] We agree with the courts which allow a distriсt court to analyze the veracity of the in-court witness because those decisions are better reasoned and give effect to the intentions of the drafters of Fed. R. Ev. 804(b)(3). As the author points out in 30B M. Graham, Federal Practice and Procedure: Evidence § 7075 n. 31, at 861:
One of the truly beneficial effects of the Federal Rules of Evidence is the recognition that the issue of certainty of making of an out-of-court declaration should not be left in all instances solely to exploration on cross-examination. Cross-examination of a person merely repeаting what he says was said is not likely to be effective. This factor played a major role in Congress’s determination to revise Rule 801(d)(1)(A), prior inconsistent statements, to require that the prior statement be made at a formal hearing. Similarly, with respect to Rule 807, certainty of making has been recognized as an appropriate factor in determining equivalent circumstantial guarantees of trustworthiness. Certainty of making should be considered as well in determining the issue of “corroborating circumstances” under rule 804(b)(3).
We conclude that in determining “corroborating circumstances” under N.D.R.Ev. 804(b)(3), the district court should analyze both the credibility of the in-court witness and the reliability of the out-of-court de-clarant.
[¶ 25] In
Rasmussen,
(1) whether there is any apparent motive for the out-of-court declarant to misrepresent the matter, (2) the general character of the speaker, (3) whether other people heard the out-of-court statement, (4) whether the statement *903 was made spontaneously, (5) the timing of the declaration and the relationship between the speaker and the witness.
[¶ 26] The district court found Boyce had a motive to fabricate because she was Stridiroris girlfriend’s best friend. Other circumstances cast doubt on Boyce’s veracity. On August 2, 2007, Boyce submitted to investigators a statement written in her own hand that did not mention Davis had told her he killed Velasquez. Boyce did not report to the police her claim that Davis told her he had killed Velasquez until March 11, 2008, approximately eight months after Davis’s “confession” purportedly occurred. Boyce’s husband, who Boyce claimed was also a party to the conversation, never indicated Davis made the statement. Although Stridiron claims the presence of gunshot residue on Davis’s hands supports the veracity of his statement, the evidence reflected that Stri-diron had much more gunshot residue on his hands than was found on Davis, and the cоurt determined this “evidence alone is not sufficient to dearly indicate the trustworthiness of [Boyce’s] statement.”
[¶ 27] We conclude the district court correctly analyzed the requirement of corroborating circumstances under N.D.R.Ev. 804(b)(3), and did not abuse its discretion in ruling Boyce’s proffered testimony was inadmissible.
VI
[¶ 28] Davis argues there was insufficient evidence to support the jury’s verdict finding him guilty of aggravated assault.
[¶ 29] This Court will reverse a criminal conviction only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.
See, e.g., State v. Curtis,
[¶ 30] The State charged Davis with class C felony aggravated assault, in that he:
willfully caused serious bodily injury to another human being or knowingly caused bodily injury or substantial bodily injury to another human being with a dangerous weapon or other weapon, the possession of which under the circumstances indicated an intent or readiness to inflict serious bodily injury, to-wit, the defendant caused serious bodily injury, bodily injury, or substantial bodily injury, to one Joshua Velasquez under circumstаnces in which the defendant assaulted Velasquez with a scythe/grass cutter.
[¶ 31] Davis’s challenge to the sufficiency of the evidence appears to be an attack on the jury’s refusal to accept his assertion of self-defense. “This Court does not sit as a ‘thirteenth juror’ to make independent determinations of credibility of witnesses or other evidentiary weight.”
State v. Barendt,
VII
[¶ 32] The criminal judgments are affirmed.